California Meal Breaks and Rest Breaks – When Are They Required?

Yes. In California, employers are required to provide their employees both meal breaks and rest breaks depending on the hours those employees work.

CALIFORNIA MEAL BREAKS

When are meal breaks required in California?

Under California law (Wage Orders and Labor Code Section 512), employees must be provided with no less than one, thirty-minute (30) meal period when the work period is more than five hours.1 So if a total shift is less than five hours, then no meal break is required. However, if a shift is longer than five hours, then a thirty-minute (30) meal break is required. If the shift is longer than ten (10) hours per day, then the employer is required to provide the employee with a second thirty (30) minute meal break.[/note] Id.[/note]

Can meal breaks be waived?

Sometimes. If the total shift worked is less than six (6) hours total, then the employer and the employee can agree that no meal period will be taken.2 Also, if the total shift is less than twelve (12) hours total, then the employer and employee can agree that no second meal period will be taken so long as the first meal period was taken. .3 Notice, these meal breaks can only be waived if the employee agrees and if the shift is less than 6 hours for waiver of the first meal break and less than 12 hours for waiver of the second meal break.

How long are meal breaks in California?

When a meal breaks is required (that is, when a shift is longer than five hours), the employer must provide the employee with at least a thirty-minute meal break. Of course, employers are allowed to give longer meal breaks if they like, but they must last no less than thirty-minutes.

Are there certain times when meal breaks must be taken during a workday?

Yes. When an employee works for more than five (5) hours, a meal period must be provided no later than the end of the employee’s fifth hour of work (no later than the start of the employee’s sixth hour of work).4 When an employee works for a period of more than ten (10) hours, a second meal period must be provided no later than the end of the employee’s tenth hour of work (no later than the start of the employee’s eleventh hour of work).)5

Are meal breaks in California paid or unpaid?

Under California law, employers are not required to pay employees for meal breaks. A meal break is just that – a break. During that time, employees are tending to their own needs rather than the needs of their employer so the meal break is typically unpaid. That said, employers are allowed to pay employees for the time they spend taking meal breaks, but are not required to.

Is there a penalty if an employee misses a meal break?

Yes. If an employee misses a meal break altogether or if they receive a meal breaks that is less than thirty-minutes, then the employer owes that employee a penalty. The amount of the penalty is one hour of the employee’s regular rate of pay.6 So if the employee earns $15/hour, then the penalty for the missed meal break is $15 for each day that the break was missed. While the penalty may seem relatively small, it can add up quickly. An employee earning $15/hour who routinely receives meal breaks of twenty-five (25) minutes a day (instead of the full thirty (30) minutes they should receive) could be owed up to $15,600 for “missed” meal break penalties – assuming the meal break violations lasted for 4 years.

How does an employer satisfy its obligation to provide a meal period under California law?

Employers are not required to monitor every moment of an employee’s time to ensure that no work is performed during meal breaks. However, the employer must do more than simply make a meal period “available” to the employee. In general, the employer must do the following:

Relieve the employee of all duties;

Relinquish control over their activities;

Permit them a reasonable opportunity to take an uninterrupted 30-minute break (in which they are free to come and go as they please); and

Can employees be forced to take their meal breaks on the employer’s premises?

No. If an employee is required to stay on the employer’s premises for their meal break, then the employer has not relinquished control over the employee.8 If an employer requires an employee to remain on premises during meal breaks (even if the employee is relieved of all work duties during their break), the employer owes that employee an extra hour of pay for every day they are forced to take their break on the employer’s premises.9

CALIFORNIA REST BREAKS

When are rest breaks required in California?

Under California law (Wage Orders and Labor Code Section 512), employees must be provided one, ten-minute rest break for every four (4) hours of work or major fraction thereof (“major fraction” means more than 3 1/2 hours)10 So if a total shift is less than three and a half (3 1/2) hours, then no rest break is required.11 However, if a shift is longer than three and a half (3 1/2) hours, then a rest break of at least ten minutes is required.

How long are rest breaks in California?

When a rest break is required (that is, when a shift is longer than three and a half (3 1/2) hours), the employer must provide the employee with at least one ten-minute rest break.12 Of course, employers are allowed to give longer rest breaks if they like, but they must last no less than ten-minutes.

How many rest breaks are employees entitled to in California?

The answer depends on how many hours the employee is working. In Brinker Restaurant Corp. v. Superior Court,13 the Supreme Court of California clarified the number of rest breaks that employees are entitled to take as follows:

Under California law, employers are required to pay employees for time spent taking rest breaks even though no work is being performed during those breaks.

Can employees be required to remain “on call” during rest breaks?

No. Rest breaks must be free of all work. In Augustus v. ABM Security Services, Inc., the Supreme Court of California ruled that rest periods must be off duty, and that employers must relinquish all control over how employees spend their break time. The Court ruled that “on call” breaks are not permitted. The court held that a security company that required its security guards to keep their pagers and radios on during rest periods failed to provide “work free” rest breaks under California labor law.

Is there a penalty if an employee works during a rest break?

Yes. If an employee misses a rest break altogether or if they receive a rest breaks that is less than ten-minutes, then the employer owes that employee a penalty. The amount of the penalty is the same as for a missed meal break – one hour of the employee’s regular rate of pay.15 So if the employee earns $15/hour, then the penalty for the missed rest break is $15 for each day that the break was missed. Like with missed meal breaks, this small penalty can add up quickly over time.

Labor Code 512(a). [“An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”]

Labor Code section 226.7(c) [“If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee s regular rate of compensation for each workday that the meal or rest or recovery period is not provided”]

Cal. Code of Regs., tit. 8, §§ 11010-11150(subd. 12(a))(“Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.”).

Cal. Code of Regs., tit. 8, §§ 11010-11150(subd. 12(a))[“If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each work day that the rest period is not provided.”]